Atkinson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 24 7/99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN REID ATKINSON of Wanganui Appellant (Appeal No. DCA 508/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 26th day of July 1999 APPEARANCE/COUNSEL J M Miller for appellant B Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant has appealed against the decision of the respondent issued on 27 November 1997 in which it stated that the appellant was not entitled to cover for medical misadventure. The background to the appeal is that the appellant was born on 29 March 1995. His mother had gone into premature labour at 33 weeks and delivery was made by way of a caesarean operation at 35 weeks with a possible concealed abruption. The appellant did not require resuscitation but needed a few hours on oxygen. He 2 approximately one week. Thereafter the events which occurred are encapsulated in the first record of the respondent's Medical Misadventure Advisory Committee as being: "Reid underwent surgery at Wanganui Hospital on 29/4/95 for a suspected hypertrophic pylorostenosis, which was not confirmed by ultrasound or contrast studies pre-operatively. The surgeon felt that an exploratory laparotomy was needed. Reid was anaesthetised by Dr Vroon. At the pre-op assessment, Dr Vroon noted that Reid had a mild metabolic alkalosis, but was otherwise well. A nasogastric tube had been passed to aspirate any remaining stomach contents, but no aspirate was obtained. . In theatre, Reid was induced with Halothane in oxygen. When intubation was attempted, copious amounts of white liquid was regurgitated into the pharynx, which was cleared with suction apparatus. Reid was successfully intubated and manually ventilated. Soon after, the SpO2 was noted to decrease and higher inflation pressures were required to ventilate Reid. On auscultation of the chest, there were scattered ronchi and wheezes. It was decided to summon the Wellington Neonatal Retrieval team, as it was not possible to accommodate Reid in the Wanganui Hosp neonatal unit. Reid was kept anaesthetised after the surgery, pending the arrival of the Wellington team. Reid is apparently not meeting milestones, and Mr and Mrs Atkinson are alleging error on the part of Dr Vroon, as they feel that the aspiration has led to ischaemic brain damage." The conclusion reached by the Medical Misadventure Advisory Committee which included a Specialist Anaesthetist was that: "As there is no evidence before the Committee that would establish Reid's current problems are causally related to the anaesthetic of 29 April 1995, the recommendation of the Committee is that the claim be declined ..." The appellant thereafter submitted a report from Dr A Arthur, a Paediatrician, whose conclusions were: "1. I believe Reid does have a degree of developmental delay, most obvious in speech, and his overall skills are at perhaps an 18 month level at a chronological age of 26 months, i e a Developmental Quotient of 65-70. Progress is said to have accelerated recently, so his longer term assessment may well improve. 2. The delay in motor development with some clumsiness, and tendency to concentrate well on repetitive play whilst ignoring other people, plus the more marked delay in speech, raises the question of Asperger's Syndrome - but I do not feel he really fulfills (sic) all the criteria. This issue may become more clear-cut with the passage of time. Although the syndrome is frequently hereditary, it has been described in cases following injury or trauma. 3. As with the large majority of children with developmental delay, there does not appear to be a definate (sic) aetiology in Reid's case. 3 The moderated prematurity and/or the delivery by emergency Caesarean Section may be factors but the records do not suggest significant asphyxia, and evidence is now very strong that the intra-uterine environment and genetic factors play a much greater role than short-lived intrapartum hypoxia in the causation of subsequent CNS problems in the baby. 4. There is no doubt that Reid suffered an untoward and potentially damaging event during induction of anaesthesia, due largely to inadequate pre-operative aspiration from the stomach of the large amount of barium solution he had been given - as was also evidenced by the post-operative X-rays mentioned earlier. The lowest oxygen saturation recorded was 87%, apparently not of long duration, which does not suggest profound or sustained cerebral hypoxia. I did not find any comment re his blood pressure in the operative notes or Dr Vroon's report of 11/02/97. On the evidence available, I do not believe one can confidently attribute all of Reid's problem to the anaesthetic incident. Equally, I do not think one can confidently exclude an adverse effect on his brain due to the hypoxia during anaesthetic induction. The incident occurred when he was only four weeks of age, an insufficient time to establish whether or not his development was normal initially and then became slower after the anaesthesia and surgery. 5. In regard to possible investigations to try to establish what cerebral pathology he may have and what may have been the netiology, I doubt if a cranial CT scan would be of any real value, and although a cranial MRI scan might clarify the situation to some extent re the possibility of atrophy or neuronal migration defects I do not believe that subjecting Reid to a potentially difficult anaesthetic to carry out a MRI scan would be justified as there is no guarantee that the MRI brain scan would be diagnostic or clearly establish the aetiology of his difficulties. 6. Summary a. Reid does show evidence of developmental delay in my opinion. b. A "medical error" was made, not by the Anaesthetist, but in the inedequacy (sic) of the pre-operative preparation in failing to aspirate the large quantity of barium solution from his stomach which lead to the inhalation of barium-containing fluid into his lungs during the induction of annesthasia (sic). c. It cannot be denied that the hypoxia following the aspiration of stomach contents into his lungs may have contributed to his subsequent developmental delay (although it may not be the sole factor), and if this is accepted then it follows that he has suffered "medical misadventure", i e personal injury resulting from "medical error"." 4 The second meeting of the Medical Misadventure Advisory Committee took place on 23 October 1997 and the Committee included Dr Leona Wilson, an Anaesthetist, who subsequently gave evidence at the review hearing. That meeting of the Committee had the benefit of Dr Arthur's report. In its findings the Committee noted: "... It cannot be denied that the hypoxia following the aspiration of stomach contents into his lungs may have contributed to his subsequent developmental delay, although it may not be the sole factor. If this be accepted, it follows that Reid has suffered medical misadventure. As already noted, Dr Arthur had earlier said in his report that as the lowest oxygen saturation recorded was 87%, apparently not of long duration, there is no suggestion of profound or sustained cerebral hypoxia. The Capital Coast Health Paediatric Development assessment notes at page 6 that the regurgitation and subsequent aspiration of barium at anaesthetic induction, following inadequate aspiration pre-operatively, "was not recorded to have been associated with profound or prolonged hypoxia (lowest 02 saturation recorded 85)". Whilst it concludes that such event cannot be definitely excluded as a contributing factor to Reid's difficulties, it notes that genetic factors in the early intra-uterine environment are recognised to be the most significant in the probable netiology of developmental abnormalities." The Committee's conclusion was: "The Committee is concerned that a number of the procedures carried out in this case appear to have been sub-optimal in quality, but the difficulty it has is that there is presently no evidence before it demonstrating the existence of a causal link between the treatment Reid received in Wanganui Hospital and his neurodevelopmental delay. It follows that, even if error were accepted, there is still a need to demonstrate a nexus between such error and Reid's neurodevelopmental delay and of such link there is no evidence." After the claim was declined by the respondent the appellant applied for a review of that decision. At the review hearing Dr Wilson gave evidence. In the course of her evidence she stated: "Commenting on the hypoxia, I spoke to some of my colleagues who have been specialist paediatric cardiac anaesthetists, and they said in fact the saturation levels recorded here are reasonably normal for (inaudible) heart disease children pre-surgery. The.. oxygen carriage in the blood has quite a margin of safety. These saturation's, although aren't normal in an anaesthetic, aren't that uncommon. We've only been measuring saturations for the last 10 years and practice has changed during that time. But.. there's no sign.. there's a comment there was no bradacardia, that's a slowed heart rate, during the procedure, which is usually a sign that the body has been affected by a low oxygen rate and that is another sign that we use to see if it's been low. And the Ph.. if you accept that Ph has been normal, doesn't show an (inaudible) afterwards. They're very indirect and they're talking about the circulation.. not the circulation to the brain, but certainly a saturation of 87, 85% is reasonably normal. If you or I were on a 5 plane or standing on the top of Mount Cook, we would probably have a saturation at 90% or below. You know, it's the altitude effect. There was.. it.. it's not so much the circulation of less than properly saturated blood that can cause damage, it's the loss of circulation that really does cause a rapid damage to the brain, and I think in this case the circulation continued unimpaired during the whole time of the anaesthetic as far as I can tell, and there's no comments to the contrary from anyone." Dr Wilson further stated that in relation to a possible medical mishap that the issue of rarity might be satisfied in this case. In relation to the issue of medical error, Dr Wilson stated to the Review Officer: "The (inaudible) was stated, it was considered that the care in total was sub- optimal. My comments on that, it is difficult to ascribe that to any one player, one person in the provision of care. You often have the situation where you have a whole lot of episodes of care that while each individual episode could be looked at and said no, that didn't fall below the standard, each one becomes cumulative." Dr Wilson concluded that in her opinion there has been no error on the part of the Anaesthetist. The Review Officer noted that the appellant suffered impaired neurological development and that the evidence indicated that the standard of care was "sub- optimal". However, his principal concern was whether the appellant had suffered a personal injury which was caused by accident. He concluded that there was no causal connection between the procedures carried out on the appellant and the subsequent problems he suffered. It is against that decision which the appellant now appeals. Mr Miller submitted that the appellant had suffered brain damage as a result of the medical procedures which were described as "sub-optimal". He relied on five principal arguments, being: 1. That it is not necessary for the appellant to show causation with a medical misadventure claim but only to satisfy the less stringent test of "resulting from"; 2. That the appellant does not have to show that the injury resulted from medical misadventure on the balance of probabilities; 3. That the appellant relies on the principle of res ipsa loquitor; 4. That even if the standard of proof is on the balance of probabilities there is sufficient evidence for an inference to be drawn that the "sub-optimal care", "inadequate pre-operative aspiration" and "hypoxia during anaesthetic induction" resulted in the brain damage to the appellant; 5. That the appellant relies on the law of trespass to the person. 6 Mr Corkill submitted: 1. That one issue which has not been traversed is whether or not the appellant suffered a "personal injury". That the Medical Misadventure Advisory Committee had noted that there had been "no definitive diagnosis of Reid's problems" and that it appeared to be accepted that the appellant suffered a developmental disorder but this raised doubts as to whether that constituted "personal injury". That notwithstanding the failure to address that issue he made submissions on the basis that it was accepted that personal injury could be established. 2. That he disagreed with Mr Miller's submission that it was not necessary to " show "cause". As a result of the decision in Brider and Another v ARCIC (AP 120/98, Wellington Registry) in which the High Court had to consider the definition of cover in section 8 it was held that the use of the words "consequence" and "result" in the various sections demonstrated that they had the same meaning and "may be used interchangeably". That similar consideration of the use of these words had been undertaken by the High Court of Australia which had come to a similar conclusion in Chappel v Hart (1998) 72 ALJR 1344. 3. That having accepted the necessary linkage of the terms the medical evidence clearly failed to establish that what occurred to the appellant was the result of the medical procedure carried out on him. 4. That there has been no diminution in the burden and standard of proof required in this jurisdiction as was confirmed by the Court of Appeal in West v Firestone Tyre and Rubber Company [1992] 2 NZLR 23. 5. That the issue of res ipsa loquitor has no application to this appeal. That the doctrine applies where it can be said that an accident of a particular character, more for than not, is the outcome of negligence. However, there must be cogent evidence to show that normally such an event would not occur and that here there is no such evidence. That by way of example in the decision in Loveday v Renton [1990] 1 Med LR 117 the Court held that the plaintiff failed to show, on the balance of probabilities, that Pertussis vaccine could cause brain damage in young children, although it was "possible" that it did because the contrary could not be proved either. The medical evidence in that case was divided. In Loveday the Court had identified several factors which might have caused a close temporal association between the administration of the vaccine and the subsequent neurological damage but was not satisfied that it demonstrated the necessary causal link. Similarly, in this case there is no medical evidence which supports a causal link but only speculation amongst the various practitioners. 6. That the submission of trespass to the person cannot succeed as there is absolutely no evidence of a failure to obtain the proper consent for the procedures undertaken. That it must be presumed that the parents had given 7 their consent to the initial procedures which were required and these were properly undertaken. As I have reached a firm conclusion on the issue before me, I adopt Mr Corkill's approach that the question of whether the appellant has suffered a personal injury can be left to one side and assume that the case for personal injury can be made out. The issue falls to be decided under sections 5 and 8 of the Act which in so far as they apply to the appeal state: "5. Definition of "medical misadventure"---(1) For the purposes of this Act,- "Medical error" means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results: "Medical misadventure" means personal injury resulting from medical error or medical mishap: "Medical mishap" means an adverse consequence of treatment byl, or at the direction of, } a registered health professional, properly given, if- (a) The likelihood of the adverse consequence of the treatment occurring is rare; and (b) The adverse consequence of the treatment is severe. (2) For the purposes of the definition of the term "medical mishap", the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given." " 8. Cover for personal injury occurring in New Zealand---(1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the Ist day of July 1992 in respect of which there is cover under this Act. (2) Cover under this Act shall extend to personal injury which- (a) Is caused by an accident to the person concerned; or (b) Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 or section 11 of this Act; or (c) Is medical misadventure as defined in section 5 of this Act; or (d) Is a consequence of treatment for personal injury [covered by this . Act]." Mr Miller's principal submission is that the use of the words "result from" in section 5 imposes a less stringent test than the use of the words "caused by" in section 8(2)(a) and (b). He submitted again that the use of the words "consequence of treatment" in section 8(2)(d) carries with it the same connotation of a lesser standard. While I accept that there has been no definitive explanation of the cause of the problems suffered by the appellant, I do not agree with Mr Miller's submission that taken in a temporal sense something must have happened in the course of the 8 medical procedures which resulted in the problem and that it is not necessary to look further for a specific diagnosis of what did in fact occurr. I agree with his submission that if practitioners, placed in the position they were in respect of this appellant knew what had caused the outcome they could possibly have prevented it but there are cases where a mishap will occur which cannot be explained but might be linked to the treatment given. I have already referred to the decision in Brider from which it is clear that the High Court has accepted that there is no great mystery in interchanging the words "caused by", "resulting from" and "consequence of" for the same meaning within the context of this legislation. They are merely "linking" terms which can be used interchangeably. I consider therefore that the issue for the Court to decide is whether or not the fact that it was accepted that there had been "sub-optimal care" and "hypoxia during anaesthetist induction" caused brain damage to this appellant. The only possible support for this proposition is Dr Arthur's suggestion that what occurred during the procedure "may have contributed to subsequent developmental delay". The Paediatric team considered the appellant's problems to be of "uncertain aetiology" and Dr Wilson was not able to state one way or the other whether the procedures had caused minor cerebral damage. Dr Wilson had supported this in her evidence before the Review Officer in which she said that damage can be caused by loss of circulation which causes rapid damage to the brain while the evidence in this case demonstrated that the circulation had continued unimpaired during the whole of the procedure. I am therefore satisfied that there is no causal link between the appellant's problems and the procedure carried out on 29 April 1995. While Mr Miller raised the issue of whether, in medical misadventure cases, the standard of proof resulted in a lower threshold than that normally required because of the use of the words "resulting from" and "consequence of treatment" as opposed to the use of the words "caused by" I do not accept that submission. In West v Firestone Tyre and Rubber Company Cooke P noted that in a case of this nature the ordinary civil standard of proof on the balance of probabilities is the required standard. I consider that the Court must be bound by that finding. Mr Miller has submitted that it is imposing too high a burden on the appellant in cases of medical misadventure to satisfy the Court on the balance of probabilities that the approach he makes should be sustained. I do not consider that there has been any change in the requirement that an appellant must accept the burden on him to establish the claim which he makes. It is for the appellant to persuade the Court that the evidence available establishes that the facts upon which he relies for a decision in his favour. It is therefore necessary for this appellant to accept that burden and to satisfy the Court that he has suffered a personal injury as a result of medical misadventure. I accept Mr Corkill's submission that the doctrine of res ipsa loquitor does not apply in this case (Loveday v Renton). It is quite clear that if the doctrine is to apply the accident suffered by the appellant must be the outcome of negligence. The evidence in this case clearly points to the contrary. Moreover, the medical evidence is unable 9 to establish a causal link between the procedures undertaken and the appellant's problem. I do not consider therefore that the doctrine is applicable in this case. I agree with Mr Corkill's submission that in order to establish the claim of trespass to the person it would be necessary to show that no proper consent had been given to the procedures carried out. I agree that there is no direct evidence that proper consent was not given and it must be implied that before the procedures were undertaken the appellant's parents were aware of what was required to be done. For the reasons I have outlined, the appeal must therefore be dismissed. DATED at WELLINGTON this 874 day of September 1999 A W Middleton District Court Judge dca508-98.doc (nr)